Protecting against harassment and hostile work environment
Q: I have worked for this company for over 10 years and I have a good record. My employer recently hired another employee who is making me uncomfortable. When I am on a lunch break, they would come up to me while I am eating and show me sexually inappropriate photos from their phone or tell me off-color jokes. I have told them I do not want to see these photos or hear these jokes. Once, they showed me a photo of a gun they owned. I have seen this co-worker yell at another co-worker while using profanities. I have caught this co-worker trying to take photos of me while I was taking a nap in my car during my lunch break. I do not want to report them and get them in trouble (and also, they own a gun!). But I am seriously getting disturbed by these incidents. Is there anything I can do?
A: Yes. You can start documenting. Whenever my office receives inquiries or calls for help about harassment, retaliation, discrimination, bullying, etc., the one thing I wish I could do is go back in time and talk to the employee and instruct them to start documenting. By “start documenting” I mean start taking down notes and keeping records of what happened. Why? Because in the beginning, harassment, retaliation, discrimination, bullying, etc. do not look like issues. An employee may not know why a co-worker or supervisor is acting in a certain offensive manner. They may prefer to be silent, feeling that they do not want to “rock the boat” or make the aggressor angry at them.
But if unlawful conduct is happening, it is to the employee’s best interest to express an objection and have a record of how the unlawful conduct unfolded over time. A coworker’s rude conduct at work may not qualify as harassment or discrimination. But if the “rudeness” escalates and targets someone’s race, gender, disability, sexual orientation, or any protected characteristic, this may create a hostile work environment.
Employees who are on the receiving end of “disturbing,” “inappropriate” or “offensive” conduct from co-workers or bosses might be wise to take the following actions:
- Keep a personal journal recording preferably at or near the time of the event, stating what happened, the date, time, who said and did what. You can write what you felt and whether you told the other person to stop. You must keep this personal journal or notebook in a safe location at home, not at the office. Do not put this in a company owned computer or leave it in your desk drawer. You may not have access to these notes when things take a turn for the worse.
- Gather as much evidence as possible. Take screenshots of inappropriate texts or photos sent to you. Or take pictures of any items or writing. If you were injured, take pictures of any injuries and copies of relevant medical or mental health records. If there are emails, or social media posts, keep copies or printouts of these that you can access away from the office.
- Take down notes of all information of any witness who saw or heard what happened. Identify witnesses by their full names, their positions in the company, and how they may be contacted. If there are witnesses who experienced the same misconduct, get their names and contact information. These witnesses may be able to provide supporting information later on.
- If the incidents escalate, consider notifying your employer. First, check out if you have an employment handbook which outlines your employer’s anti-harassment or anti-discrimination policies. These policies may tell you the steps to take in order to report a misconduct or file a complaint. Company policy may direct you to report to your immediate supervisor or to human resources or call a confidential hotline. In certain instances, the offending supervisor or co-worker may report false information and an employee’s “silence” or failure to report an incident may be taken against the latter.
- In notifying your employer, be professional and cordial. State the facts of what happened, be objective, and avoid name-calling or derogatory language. If you had been keeping records, you can mention dates, times and examples of the more serious incidents that happened. Do not make threats. You may state your concerns regarding how these incidents affect workplace safety or work productivity.
Employees who experience hostile workplace environments/discrimination/retaliation may have had their feelings of safety and comfort and productivity adversely affected. They may suffer long-term mental and physical impacts. They may become unable to work and suffer loss of wages.
If, after all the employees’ efforts, the misconduct continues, or worse, the employee suffers an adverse employment action such as a termination, it will be smart for that employee to consult with experienced employment counsel.
The Law Offices of C. Joe Sayas, Jr. welcomes inquiries about this topic. All inquiries are confidential and at no-cost. You can contact the office at (818) 291-0088 or visit www.joesayaslaw.com. [For more than 25 years, C. Joe Sayas, Jr., Esq. successfully recovered wages and other monetary damages for thousands of employees and consumers. He was named Top Labor & Employment Attorney in California by the Daily Journal, consistently selected as Super Lawyer by the Los Angeles Magazine, and is a past Presidential Awardee for Outstanding Filipino Overseas.]